South African Schools Act No. 84 of 1996 (as Amended)

SOUTH AFRICAN SCHOOLS ACT NO. 84 OF 1996 [View Regulation] [ASSENTED TO 6 NOVEMBER, 1996] [DATE OF COMMENCEMENT: 1 JANUARY, 1997]...

SOUTH AFRICAN SCHOOLS ACT NO. 84 OF 1996 [View Regulation] [ASSENTED TO 6 NOVEMBER, 1996] [DATE OF COMMENCEMENT: 1 JANUARY, 1997] (Unless otherwise indicated) (English text signed by the President) This Act has been updated to Government Gazette 34620 dated 19 September, 2011. as amended by Education Laws Amendment Act, No. 100 of 1997 Education Laws Amendment Act, No. 48 of 1999 Education Laws Amendment Act, No. 53 of 2000 Education Laws Amendment Act, No. 57 of 2001 Education Laws Amendment Act, No. 50 of 2002 Education Laws Amendment Act, No. 1 of 2004 Education Laws Amendment Act, No. 24 of 2005 Education Laws Amendment Act, No. 31 of 2007 Basic Education Laws Amendment Act, No. 15 of 2011 ACT To provide for a uniform system for the organisation, governance and funding of schools; to amend and repeal certain laws relating to schools; and to provide for matters connected therewith. Preamble.—WHEREAS the achievement of democracy in South Africa has consigned to history the past system of education which was based on racial inequality and segregation; and WHEREAS this country requires a new national system for schools which will redress past injustices in educational provision, provide an education of progressively high quality for all learners and in so doing lay a strong foundation for the development of all our people’s talents and capabilities, advance the democratic transformation of society, combat racism and sexism and all other forms of unfair discrimination and intolerance, contribute to the eradication of poverty and the economic well- being of society, protect and advance our diverse cultures and languages, uphold the rights of all learners, parents and educators, and promote their acceptance of responsibility for the organisation, governance and funding of schools in partnership with the State; and WHEREAS it is necessary to set uniform norms and standards for the education of learners at schools and the organisation, governance and funding of schools throughout the Republic of South Africa;  ARRANGEMENT OF SECTIONS CHAPTER 1 DEFINITIONS AND APPLICATION OF ACT 1. Definitions 2. Application of Act CHAPTER 2 LEARNERS 3. Compulsory attendance 4. Exemption from compulsory attendance 5. Admission to public schools Norms and standards for basic infrastructure and capacity in public 5A. schools 6. Language policy of public schools 6A. Curriculum and assessment 6B. Non-discrimination in respect of official languages 7. Freedom of conscience and religion at public schools 8. Code of conduct 8A. Random search and seizure and drug testing at schools 9. Suspension and expulsion from public school 10. Prohibition of corporal punishment 10A. Prohibition of initiation practices 11. Representative council of learners CHAPTER 3 PUBLIC SCHOOLS 12. Provision of public schools 12A. Merger of public schools 13. Public schools on State property 14. Public schools on private property 15. Status of public schools 16. Governance and professional management of public schools 16A. Functions and responsibilities of principal of public school 17. Governing body serving two or more schools 18. Constitution of governing body 18A. Code of conduct of governing body 19. Enhancement of capacity of governing bodies 20. Functions of all governing bodies 21. Allocated functions of governing bodies 22. Withdrawal of functions from governing bodies 23. Membership of governing body of ordinary public school Membership of governing body of public school for learners with special 24. education needs 25. Failure by governing body to perform functions 26. Recusal by members of governing body 27. Reimbursement of members of governing body 28. Election of members of governing body 29. Office-bearers of governing bodies 30. Committees of governing body 31. Term of office of members and office-bearers of governing bodies 32. Status of minors on governing bodies of public schools 33. Closure of public schools 33A. Prohibition of political activities during school time  CHAPTER 4 FUNDING OF PUBLIC SCHOOLS 34. Responsibility of State 35. Norms and standards for school funding 36. Responsibility of governing body 37. School funds and assets of public schools 38. Annual budget of public school Prohibition of payment of unauthorised remuneration, or giving of financial 38A. benefit or benefit in kind to certain employees 39. School fees at public schools 40. Parent’s liability for payment of school fees 41. Enforcement of payment of school fees 42. Financial records and statements of public schools 43. Audit or examination of financial records and statements 44. Financial year of public school CHAPTER 5 INDEPENDENT SCHOOLS 45. Establishment of independent school 45A. Admission age to independent school 46. Registration of independent school 47. Withdrawal of registration of independent school 48. Subsidies to registered independent schools 49. Declaration of independent school as public school 50. Duties of Member of Executive Council relating to independent schools 51. Registration of learner for education at home CHAPTER 6 TRANSITIONAL PROVISIONS 52. Transitional provisions relating to schools other than private schools 53. Transitional provisions relating to private schools 55. Transitional provisions relating to immovable property of certain schools 56. Transitional provisions relating to public schools on private property Transitional provisions relating to private property owned by religious 57. organisation CHAPTER 7 GENERAL PROVISIONS 58. Expropriation 58A. Alienation of assets of public school 58B. Identification of underperforming public schools 58C. Compliance with norms and standards 59. Duty of schools to provide information 60. Liability of State 61. Regulations 62. Delegation of powers 63. Repeal and amendment of laws 64. Short title and commencement Schedule 1. Schedule 2. Amendment of Educators’ Employment Act, 1994, by section 63 CHAPTER 1 DEFINITIONS AND APPLICATION OF ACT  1. Definitions.—(1) In this Act, unless the context indicates otherwise— “Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996); [Definition of “Constitution” substituted by s. 1 (b) of Act No. 100 of 1997.] Wording of Sections “Council of Education Ministers” means the Council of Education Ministers established by the National Education Policy Act, 1996 (Act No. 27 of 1996); “dangerous object” means— (a) any explosive material or device; (b) any firearm or gas weapon; (c) any article, object or instrument that may be employed to cause bodily harm to a person or damage to property, or to render a person temporarily paralysed or unconscious; or (d) any object that the Minister may, by notice in the Gazette, declare to be a dangerous object for the purpose of this Act; [Definition of “dangerous object” inserted by s. 4 (a) of Act No. 31 of 2007.] “education department” means the department established by section 7 (2) of the Public Service Act, 1994 (Proclamation No. 103 of 1994), which is responsible for education in a province; “educator” means any person, excluding a person who is appointed to exclusively perform extracurricular duties, who teaches, educates or trains other persons or who provides professional educational services, including professional therapy and education psychological services, at a school; [Definition of “educator” substituted by s. 6 (a) of Act No. 48 of 1999.] Wording of Sections “governing body” means a governing body contemplated in section 16 (1); “grade” means that part of an educational programme which a learner may complete in one school year, or any other education programme which the Member of the Executive Council may deem to be equivalent thereto; “Head of Department” means the head of an education department; “illegal drug” means— (a) any unlawful substance that has a psychological or physiological effect; or (b) any substance having such effect that is possessed unlawfully; [Definition of “illegal drug” inserted by s. 4 (b) of Act No. 31 of 2007.] “independent school” means a school registered or deemed to be registered in terms of section 46;  “learner” means any person receiving education or obliged to receive education in terms of this Act; “loan” means any financial obligation based on agreement, which obligation renders a school liable for making payment, in one or more instalments, in favour of any person, but does not include the payment of staff appointed by the governing body in terms of section 20 (4) or (5); [Definition of “loan” inserted by s. 4 (a) of Act No. 15 of 2011.] “member of staff” means a person employed at a school; “Member of the Executive Council” means the Member of the Executive Council of a province who is responsible for education in that province; “Minister” means the Minister of Basic Education; [Definition of “Minister” substituted by s. 4 (b) of Act No. 15 of 2011.] Wording of Sections “no fee threshold” means the level of funding per learner contemplated in the norms and standards for school funding applicable to a public school which enables the Minister to declare a school a no fee school in terms of this Act; [Definition of “no fee threshold” inserted by s. 1 (a) of Act No. 24 of 2005.] “norms and standards for school funding” means the national norms and standards for the funding of schools determined by the Minister in terms of section 35; [Definition of “norms and standards for school funding” inserted by s. 1 (a) of Act No. 24 of 2005.] “officer” means an employee of an education department appointed in terms of the Educators Employment Act, 1994 (Proclamation No. 138 of 1994), or the Public Service Act, 1994 (Proclamation No. 103 of 1994); “parent” means— (a) the biological or adoptive parent or legal guardian of a learner; [Para. (a) substituted by s. 4 (c) of Act No. 15 of 2011.] Wording of Sections (b) the person legally entitled to custody of a learner; or (c) the person who undertakes to fulfil the obligations of a person referred to in paragraphs (a) and (b) towards the learner’s education at school; “principal” means an educator appointed or acting as the head of a school; “province” means a province established by section 124 of the Constitution; “provincial legislature” means a provincial legislature contemplated in section 125 of the Constitution; “public school” means a school contemplated in Chapter 3; “Registrar of deeds” means the registrar of deeds referred to in section 2 of the Deeds Registries Act, 1937 (Act No. 47 of 1937); [Definition of “Registrar of deeds” inserted by s. 1 (a) of Act No. 100 of 1997.] “school” means a public school or an independent school which enrols learners in one or more grades from grade R (Reception) to grade twelve; [Definition of “school” substituted by s. 1 (c) of Act No. 100 of 1997 and by s. 6 (b) of Act No. 48 of 1999.]  Wording of Sections “school activity” means any official educational, cultural, recreational or social activity of the school within or outside the school premises; [Definition of “school activity” inserted by s. 4 (c) of Act No. 31 of 2007.] “school fees” means school fees contemplated in section 39 and includes any form of contribution of a monetary nature made or paid by a person or body in relation to the attendance or participation by a learner in any programme of a public school; [Definition of “school fees” inserted by s. 1 (b) of Act No. 24 of 2005.] “this Act” means this Act and all regulations promulgated under this Act. [Sub-s. (1), previously s. 1, amended by s. 1 of Act No. 50 of 2002.] Wording of Sections (2) Footnotes appearing in this Act must not be used in the interpretation of any provision of this Act. [Sub-s. (2) added by s. 1 of Act No. 50 of 2002.] Wording of Sections def: Constitution of Act 84 of 1996 prior to amendment by Act 100 of 1997 Wording of Sections def: educator of Act 84 of 1996 prior to amendment by Act 48 of 1999 Wording of Sections def: Minister of Act 84 of 1996 prior to amendment by Act 15 of 2011 Repealed Act P 138 of 1994 has been repealed by s 137(1) of Act 76 of 1998 Wording of Sections def: parent par(a) of Act 84 of 1996 prior to amendment by Act 15 of 2011 Wording of Sections def: school of Act 84 of 1996 prior to amendment by Act 100 of 1997 def: school of Act 84 of 1996 prior to amendment by Act 48 of 1999 Wording of Sections s 1(1), s 1 of Act 84 of 1996 prior to amendment by Act 50 of 2002 2. Application of Act.—(1) This Act applies to school education in the Republic of South Africa. (2) A Member of the Executive Council and a Head of Department must exercise any power conferred upon them by or under this Act, after taking full account of the applicable policy determined in terms of the National Education Policy Act, 1996 (Act No. 27 of 1996). (3) Nothing in this Act prevents a provincial legislature from enacting legislation for school education in a province in accordance with the Constitution and this Act. [Sub-s. (3) amended by s. 2 of Act No. 100 of 1997.] Wording of Sections  CHAPTER 2 LEARNERS Wording of Sections s 2(3) of Act 84 of 1996 prior to amendment by Act 100 of 1997 3. Compulsory attendance.—(1) Subject to this Act and any applicable provincial law, every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first. (2) The Minister must, by notice in the Government Gazette, determine the ages of compulsory attendance at school for learners with special education needs. (3) Every Member of the Executive Council must ensure that there are enough school places so that every child who lives in his or her province can attend school as required by subsections (1) and (2). (4) If a Member of the Executive Council cannot comply with subsection (3) because of a lack of capacity existing at the date of commencement of this Act, he or she must take steps to remedy any such lack of capacity as soon as possible and must make an annual report to the Minister on the progress achieved in doing so. (5) If a learner who is subject to compulsory attendance in terms of subsection (1) is not enrolled at or fails to attend a school, the Head of Department may— (a) investigate the circumstances of the learner’s absence from school; (b) take appropriate measures to remedy the situation; and (c) failing such a remedy, issue a written notice to the parent of the learner requiring compliance with subsection (1). (6) Subject to this Act and any other applicable law— (a) any parent who, without just cause and after a written notice from the Head of Department, fails to comply with subsection (1), is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months; or (b) any other person who, without just cause, prevents a learner who is subject to compulsory attendance from attending a school, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months. 4. Exemption from compulsory attendance.—(1) A Head of Department may exempt a learner entirely, partially or conditionally from compulsory school attendance if it is in the best interests of the learner. (2) Every Head of Department must maintain a register of all learners exempted from compulsory school attendance.  5. Admission to public schools.—(1) A public school must admit learners and serve their educational requirements without unfairly discriminating in any way. (2) The governing body of a public school may not administer any test related to the admission of a learner to a public school, or direct or authorise the principal of the school or any other person to administer such test. (3) No learner may be refused admission to a public school on the grounds that his or her parent— (a) is unable to pay or has not paid the school fees determined by the governing body under section 39; (b) does not subscribe to the mission statement of the school; or (c) has refused to enter into a contract in terms of which the parent waives any claim for damages arising out of the education of the learner. (4) (a) The admission age of a learner to a public school to— (i) grade R is age four turning five by 30 June in the year of admission; (ii) grade 1 is age five turning six by 30 June in the year of admission. (b) Subject to the availability of suitable school places and other educational resources, the Head of Department may admit a learner who— (i) is under the age contemplated in paragraph (a) if good cause is shown; and (ii) complies with the criteria contemplated in paragraph (c). (c) The Minister may, by regulation, prescribe— (i) criteria for the admission to a public school, at an age lower than the admission age, of an underage learner who complies with the criteria1; (ii) age requirements for different grades at a public school. (d) For the purpose of paragraph (b) (i), good cause shown means that— (i) it can be shown that exceptional circumstances exist which necessitate the admission of an underage learner because admission would be in his or her best interest; and (ii) the refusal to admit that learner would be severely detrimental to his or her development. [Sub-s. (4) substituted by s. 2 of Act No. 50 of 2002 with effect from 1 January, 2004.] Wording of Sections (5) Subject to this Act and any applicable provincial law, the admission policy of a public school is determined by the governing body of such school.  (6) In determining the placement of a learner with special education needs, the Head of Department and principal must take into account the rights and wishes of the parents of such learner. (7) An application for the admission of a learner to a public school must be made to the education department in a manner determined by the Head of Department. (8) If an application in terms of subsection (7) is refused, the Head of Department must inform the parent in writing of such refusal and the reason therefor. (9) Any learner or parent of a learner who has been refused admission to a public school may appeal against the decision to the Member of the Executive Council. Footnotes 1 It is acknowledged that criteria for admission of an underage learner are complex and take some considerable time to develop. The criteria must be reliable and effective and their proper implementation will require the training of evaluators. The criteria must be based on an educationally sound basis in order to ensure that— (a) learners are admitted on an equitable basis; (b) there is no unfair discrimination to learners; (c) the admission is fair to the individual learner as well as other learners in the classroom; (d) recognition is given to the diversity of language, culture and economic background; (e) notice is taken of the differences between urban and rural environments; and (f) the physical, psychological and mental development of the child is taken into account. Footnote 1 It is acknowledged that criteria for admission of an underage learner are complex and take some considerable time to develop. The criteria must be reliable and effective and their proper implementation will require the training of evaluators. The criteria must be based on an educationally sound basis in order to ensure that— (a) learners are admitted on an equitable basis; (b) there is no unfair discrimination to learners; (c) the admission is fair to the individual learner as well as other learners in the classroom; (d) recognition is given to the diversity of language, culture and economic background; (e) notice is taken of the differences between urban and rural environments; and (f) the physical, psychological and mental development of the child is taken into account. Wording of Sections s 5(4) of Act 84 of 1996 prior to amendment by Act 50 of 2002 5A. Norms and standards for basic infrastructure and capacity in public schools.— (1) The Minister may, after consultation with the Minister of Finance and the Council of Education Ministers, by regulation prescribe minimum uniform norms and standards for— (a) school infrastructure; (b) capacity of a school in respect of the number of learners a school can admit; and (c) the provision of learning and teaching support material. [Sub-s. (1) amended by s. 5 of Act No. 15 of 2011.] Wording of Sections  (2) The norms and standards contemplated in subsection (1) must provide for, but not be limited to, the following: (a) In respect of school infrastructure, the availability of— (i) classrooms; (ii) electricity; (iii) water; (iv) sanitation; (v) a library; (vi) laboratories for science, technology, mathematics and life sciences; (vii) sport and recreational facilities; (viii) electronic connectivity at a school; and (ix) perimeter security; (b) in respect of the capacity of a school— (i) the number of teachers and the class size; (ii) quality of performance of a school; (iii) curriculum and extra-curricular choices; (iv) classroom size; and (v) utilisation of available classrooms of a school; (c) in respect of provision of learning and teaching support material, the availability of— (i) stationery and supplies; (ii) learning material; (iii) teaching material and equipment;  (iv) science, technology, mathematics and life sciences apparatus; (v) electronic equipment; and (vi) school furniture and other school equipment. (3) When determining policy in terms of sections 5 (5) and 6 (2) a governing body must comply with the norms and standards contemplated in subsection (1). (4) A governing body must, within a period of 12 months after the Minister has prescribed the norms and standards contemplated in subsection (1), review any policy that it has determined in terms of sections 5 (5) and 6 (2) to ensure that such policy complies with the norms and standards. [S. 5A inserted by s. 5 of Act No. 31 of 2007.] Wording of Sections s 5A(1) of Act 84 of 1996 prior to amendment by Act 15 of 2011 6. Language policy of public schools.—(1) Subject to the Constitution and this Act, the Minister may, by notice in the Government Gazette, after consultation with the Council of Education Ministers, determine norms and standards for language policy in public schools. (2) The governing body of a public school may determine the language policy of the school subject to the Constitution, this Act and any applicable provincial law. (3) No form of racial discrimination may be practised in implementing policy determined under this section. (4) A recognised Sign Language has the status of an official language for purposes of learning at a public school. 6A. Curriculum and assessment.—(1) The Minister must, by notice in the Government Gazette, determine— (a) a national curriculum statement indicating the minimum outcomes or standards; and (b) a national process and procedures for the assessment of learner achievement. (2) The curriculum and the process for the assessment of learner achievement contemplated in subsection (1) must be applicable to public and independent schools. [S. 6A inserted by s. 3 of Act No. 50 of 2002.] 6B. Non-discrimination in respect of official languages.—The governing body of a public school must ensure that— (a) there is no unfair discrimination in respect of any official languages that are offered as subject options contemplated in section 21 (1) (b); and (b)  the first additional language and any other official language offered, as provided for in the curriculum, are offered on the same level. [S. 6B inserted by s. 6 of Act No. 15 of 2011.] 7. Freedom of conscience and religion at public schools.—Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary. 8. Code of conduct.—(1) Subject to any applicable provincial law, a governing body of a public school must adopt a code of conduct for the learners after consultation with the learners, parents and educators of the school. (2) A code of conduct referred to in subsection (1) must be aimed at establishing a disciplined and purposeful school environment, dedicated to the improvement and maintenance of the quality of the learning process. (3) The Minister may, after consultation with the Council of Education Ministers, determine guidelines for the consideration of governing bodies in adopting a code of conduct for learners. (4) Nothing contained in this Act exempts a learner from the obligation to comply with the code of conduct of the school attended by such learner. (5) (a) A code of conduct must contain provisions of due process safe-guarding the interests of the learner and any other party involved in disciplinary proceedings. (b) The code of conduct must also provide for support measures or structures for counselling a learner involved in disciplinary proceedings. [Sub-s. (5) substituted by s. 6 of Act No. 31 of 2007.] Wording of Sections (6) A learner must be accompanied by his or her parent or a person designated by the parent at disciplinary proceedings, unless good cause is shown by the governing body for the continuation of the proceedings in the absence of the parent or the person designated by the parent. [Sub-s. (6) added by s. 4 of Act No. 50 of 2002.] (7) Whenever disciplinary proceedings are pending before any governing body, and it appears to such governing body that it would expose a witness under the age of 18 years to undue mental stress or suffering if he or she testifies at such proceedings, the governing body may, if practicable, appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary. [Sub-s. (7) added by s. 4 of Act No. 50 of 2002.] (8) (a) An examination, cross-examination or re-examination of a witness in respect of whom a governing body has appointed an intermediary under subsection (7), except examination by the governing body, must not take place in any manner other than through that intermediary. (b) Such intermediary may, unless the governing body directs otherwise, convey the general purport of any question to the relevant witness. [Sub-s. (8) added by s. 4 of Act No. 50 of 2002.] (9) If a governing body appoints an intermediary under subsection (7), the governing body may direct that the relevant witness must give his or her evidence at any place which— (a) is informally arranged to put that witness at ease; (b)  is arranged in a manner in which any person whose presence may upset that witness, is outside the sight and hearing of that witness; and (c) enables the governing body and any person whose presence is necessary at the relevant proceedings to hear, through the medium of any electronic or other devices, that intermediary as well as that witness during his or her testimony. [Sub-s. (9) added by s. 4 of Act No. 50 of 2002.] Wording of Sections s 8(5) of Act 84 of 1996 prior to amendment by Act 31 of 2007 8A. Random search and seizure and drug testing at schools.—(1) Unless authorised by the principal for legitimate educational purposes, no person may bring a dangerous object or illegal drug onto school premises or have such object or drug in his or her possession on school premises or during any school activity. (2) Subject to subsection (3), the principal or his or her delegate may, at random, search any group of learners, or the property of a group of learners, for any dangerous object or illegal drug, if a fair and reasonable suspicion has been established— (a) that a dangerous object or an illegal drug may be found on school premises or during a school activity; or (b) that one or more learners on school premises or during a school activity are in possession of dangerous objects or illegal drugs. (3) (a) A search contemplated in subsection (2) may only be conducted after taking into account all relevant factors, including— (i) the best interest of the learners in question or of any other learner at the school; (ii) the safety and health of the learners in question or of any other learner at the school; (iii) reasonable evidence of illegal activity; and (iv) all relevant evidence received. (b) When conducting a search contemplated in subsection (2), the principal or his or her delegate must do so in a manner that is reasonable and proportional to the suspected illegal activity. (4) Where a search contemplated in subsection (2) entails a body search of the learners in question, such search may only— (a) be conducted by— (i) the principal, if he or she is of the same gender as the learner; or (ii) by the principal’s delegate, who must be of the same gender as the learner;  (b) be done in a private area, and not in view of another learner; (c) be done if one adult witness, of the same gender as the learner, is present; and (d) be done if it does not extend to a search of a body cavity of the learner. (5) Any dangerous object or illegal drug that has been seized must be— (a) clearly and correctly labelled with full particulars, including— (i) the name of learner in whose possession it was found; (ii) the time and date of search and seizure; (iii) an incident reference number; (iv) the name of person who searched the learner; (v) the name of the witness; and (vi) any other details that may be necessary to identify the item and incident; (b) recorded in the school record book; and (c) handed over to the police immediately to dispose of it in terms of section 31 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). (6) If the police cannot collect the dangerous object or illegal drug from the school immediately, the principal or his or her delegate must— (a) take the dangerous object or illegal drug to the nearest police station; and (b) hand the dangerous object or illegal drug over to the police to dispose of it in terms of section 31 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). (7) The police officer who receives the dangerous object or illegal drug must issue an official receipt for it to the principal or to his or her delegate. (8) The principal or his or her delegate may at random administer a urine or other non- invasive test to any group of learners that is on fair and reasonable grounds suspected of using illegal drugs, after taking into account all relevant factors contemplated in subsection (3). (9) A learner contemplated in subsection (8) may be subjected to a urine or other non-invasive test for illegal drugs only if— (a) the test is conducted by a person of the same gender; (b) it is done in a private area and not in view of another learner;  (c) one adult witness, of the same gender as the learner, is present; (d) the sample is clearly and correctly labelled with full particulars as contemplated in subsection (5), with the necessary changes; and (e) a device contemplated in subsection (11) is used. (10) The principal or his or her delegate must— (a) within one working day, if practicable, inform the parent that a random test or search and seizure was done in respect of his or her child; and (b) inform the learner and his or her parent of the result of the test immediately after it becomes available. (11) The Minister must— (a) identify the device with which the test contemplated in subsection (8) is to be done and the procedure to be followed; and (b) publish the name of this device, and any other relevant information about it, in the Gazette. (12) A learner may be subjected to disciplinary proceedings if— (a) a dangerous object or illegal drug is found in his or her possession; or (b) his or her sample tested positive for an illegal drug. (13) Any disciplinary proceedings in respect of a learner must be conducted in terms of the code of conduct contemplated in section 8. (14) No criminal proceedings may be instituted by the school against a learner in respect of whom— (a) a search contemplated in subsection (2) was conducted and a dangerous object or illegal drug was found; or (b) a test contemplated in subsection (8) was conducted, which proved to be positive. [S. 8A inserted by s. 7 of Act No. 31 of 2007.] 9. Suspension and expulsion from public school.—(1) The governing body may, on reasonable grounds and as a precautionary measure, suspend a learner who is suspected of serious misconduct from attending school, but may only enforce such suspension after the learner has been granted a reasonable opportunity to make representations to it in relation to such suspension. [Sub-s. (1) amended by s. 7 of Act No. 48 of 1999 and substituted by s. 2 (a) of Act No. 24 of 2005.] Wording of Sections (1A) A governing body must conduct disciplinary proceedings in the manner contemplated in section 8 against a learner within seven school days after the suspension of such learner.  [Sub-s. (1A) inserted by s. 2 (a) of Act No. 24 of 2005.] (1B) If disciplinary proceedings are not conducted within seven school days after the suspension of a learner, the governing body must obtain the approval of the Head of Department for the continuation of the suspension of such learner. [Sub-s. (1B) inserted by s. 2 (a) of Act No. 24 of 2005.] (1C) A governing body may, if a learner is found guilty of serious misconduct during the disciplinary proceedings contemplated in section 8— (a) impose the suspension of such learner for a period not longer than seven school days or any other sanction contemplated in the code of conduct of the public school; or (b) make a recommendation to the Head of Department to expel such learner from the public school. [Sub-s. (1C) inserted by s. 2 (a) of Act No. 24 of 2005.] (1D) A Head of Department must consider the recommendation by the governing body referred to in subsection (1C) (b) and must decide whether or not to expel a learner within 14 days of receiving such recommendation. [Sub-s. (1D) inserted by s. 2 (a) of Act No. 24 of 2005.] (1E) A governing body may suspend or extend the suspension of a learner for a period not longer than 14 days pending the decision by the Head of Department whether or not to expel such learner from the public school. [Sub-s. (1E) inserted by s. 2 (a) of Act No. 24 of 2005.] (2) A learner at a public school may be expelled only— (a) by the Head of Department; and (b) if found guilty of serious misconduct after disciplinary proceedings contemplated in section 8 were conducted. [Sub-s. 2 substituted by s. 2 (b) of Act No. 24 of 2005.] (3) The Member of the Executive Council must determine by notice in the Provincial Gazette— (a) the behaviour by a learner at a public school which may constitute serious misconduct; (b) disciplinary proceedings to be followed in such cases; (c) provisions of due process safe-guarding the interests of the learner and any other party involved in disciplinary proceedings. (4) A learner or the parent of a learner who has been expelled from a public school may appeal against the decision of the Head of Department to the Member of the Executive Council within 14 days of receiving the notice of expulsion. [Sub-s. 4 substituted by s. 2 (c) of Act No. 24 of 2005.] (5) If a learner who is subject to compulsory attendance in terms of section 3 (1) is expelled from a public school, the Head of Department must make an alternative arrangement for his or her placement at a public school. (6) A learner who has appealed in the manner contemplated in subsection (4), must, pending the outcome of the appeal, be given access to education in the manner determined by the Head of Department. [Sub-s. 6 added by s. 2 (d) of Act No. 24 of 2005.]  (7) The Head of Department, in determining the manner of attendance contemplated in subsection (6)— (a) must take reasonable measures to protect the rights of other learners at the public school; and (b) may consider an alternative method of providing education to the learner contemplated in subsection (6). [Sub-s. 7 added by s. 2 (d) of Act No. 24 of 2005.] (8) If the Head of Department decides not to expel a learner as contemplated in subsection (2), the Head of Department may, after consultation with the governing body, impose a suitable sanction on the learner. [Sub-s. 8 added by s. 2 (d) of Act No. 24 of 2005.] (9) If the Head of Department decides not to impose a sanction on the learner, the Head of Department must refer the matter back to the governing body for an alternative sanction in terms of the code of conduct contemplated in section 8, other than expulsion. [Sub-s. 9 added by s. 2 (d) of Act No. 24 of 2005.] (10) The governing body must implement the sanction contemplated in subsection (8). [Sub-s. 10 added by s. 2 (d) of Act No. 24 of 2005.] (11) (a) If an appeal in terms of subsection (4) by a learner who has been expelled from a public school is upheld by the Member of the Executive Council, the Member of the Executive Council must ensure that a suitable sanction is then imposed on the learner within 14 days of the date on which the appeal was upheld. (b) For the purposes of the imposition of a suitable sanction contemplated in paragraph (a), the provisions of subsections (8) and (9) apply with the changes required by the context. [Sub-s. (11) added by s. 7 of Act No. 15 of 2011.] Wording of Sections s 9(1) of Act 84 of 1996 prior to amendment by Act 48 of 1999 s 9(1) of Act 84 of 1996 prior to amendment by Act 24 of 2005 10. Prohibition of corporal punishment.—(1) No person may administer corporal punishment at a school to a learner. (2) Any person who contravenes subsection (1) is guilty of an offence and liable on conviction to a sentence which could be imposed for assault. 10A. Prohibition of initiation practices.—(1) A person may not conduct or participate in any initiation practices against a learner at a school or in a hostel accommodating learners of a school. (2) (a) Any person who contravenes subsection (1) is guilty of misconduct and disciplinary action must be instituted against such a person in accordance with the applicable code of conduct, prescribed in sections 8 and 18A of this Act and Schedule 2 to the Employment of Educators Act, 1998 (Act No. 76 of 1998). (b) In addition to paragraph (a), a learner may institute civil action against a person or a group who manipulated and forced that learner to conduct or participate in any initiation practices.  (3) For the purposes of this Act, “initiation practices” means any act which in the process of initiation, admission into, or affiliation with, or as condition for continued membership of, a school, a group, intramural or extramural activities, interschools sports team, or organisation— (a) endangers the mental or physical health or safety of a person; (b) undermines the intrinsic worth of human beings by treating some as inferior to others; (c) subjects individuals to humiliating or violent acts which undermine the constitutional guarantee to dignity in the Bill of Rights; (d) undermines the fundamental rights and values that underpin the Constitution; (e) impedes the development of a true democratic culture that entitles an individual to be treated as worthy of respect and concern; or (f) destroys public or private property. (4) In considering whether the conduct or participation of a person in any initiation practices falls within the definition of subsection (3), the relevant disciplinary authority referred to in subsection (2) (a) must take into account the right of the learner not to be subjected to such practices. [S. 10A inserted by s. 5 of Act No. 50 of 2002.] 11. Representative council of learners.—(1) A representative council of learners at the school must be established at every public school enrolling learners in the eighth grade or higher, and such council is the only recognised and legitimate representative learner body at the school. [Sub-s. (1) substituted by s. 3 of Act No. 100 of 1997 and by s. 1 (a) of Act No. 57 of 2001.] Wording of Sections (2) Subject to policy made in terms of section 3 (4) (g) of the National Education Policy Act, 1996 (Act No. 27 of 1996), the Member of the Executive Council must, by notice in the Provincial Gazette, determine the functions and the procedures for the establishment and election of representative councils of learners. [Sub-s. (2) substituted by s. 1 (b) of Act No. 57 of 2001.] Wording of Sections (3) The Member of the Executive Council may, by notice in the Provincial Gazette, exempt a public school for learners with special education needs from complying with subsection (1) if it is not practically possible for a representative council of learners to be established at the school. CHAPTER 3 PUBLIC SCHOOLS Wording of Sections s 11(1) of Act 84 of 1996 prior to amendment by Act 100 of 1997 s 11(1) of Act 84 of 1996 prior to amendment by Act 57 of 2001 Wording of Sections s 11(2) of Act 84 of 1996 prior to amendment by Act 57 of 2001  12. Provision of public schools.—(1) The Member of the Executive Council must provide public schools for the education of learners out of funds appropriated for this purpose by the provincial legislature. (2) The provision of public schools referred to in subsection (1) may include the provision of hostels for the residential accommodation of learners. (3) (a) A public school may be— (i) an ordinary public school; (ii) a public school for learners with special education needs; or (iii) a public school that provides education with a specialised focus on talent, including sport, performing arts or creative arts. (b) Subject to the relevant provisions of this Act, the Minister must determine norms and standards for school funding and norms and standards for governance and educator provisioning for public schools contemplated in paragraph (a) (iii). [Sub-s. (3) substituted by s. 8 of Act No. 15 of 2011.] Wording of Sections (4) The Member of the Executive Council must, where reasonably practicable, provide education for learners with special education needs at ordinary public schools and provide relevant educational support services for such learners. (5) The Member of the Executive Council must take all reasonable measures to ensure that the physical facilities at public schools are accessible to disabled persons. (6) Nothing in this Act prohibits the provision of gender-specific public schools. Wording of Sections s 12(3) of Act 84 of 1996 prior to amendment by Act 15 of 2011 12A. Merger of public schools.—(1) Subject to subsection (2), the Member of the Executive Council may, by notice in the Provincial Gazette, merge two or more public schools into a single school. (2) Before merging two or more public schools the Member of the Executive Council must— (a) give written notice to the schools in question of the intention to merge them; (b) publish a notice giving the reasons for the proposed merger in one or more newspapers circulating in the area where the schools in question are situated; (c) give the governing bodies of the schools in question and any other interested persons an opportunity to make representations within a period of not less than 90 days from the date of the notice referred to in paragraph (b); (d) consider such representations; and (e)  be satisfied that the employers of staff at the public schools have complied with their obligations in terms of the applicable labour law. (3) If one or more of the schools that are to be merged in terms of subsection (1) are public schools on private property, the Member of the Executive Council must also— (a) notify the owner of the private property of his or her intention to merge the schools in question; (b) consider his or her contractual obligations in terms of the agreement contemplated in section 14; (c) renegotiate his or her obligations in terms of the existing agreement if necessary; and (d) negotiate a new agreement in terms of section 14 if the single school contemplated in subsection (1) is to be situated on private property. (4) The single school contemplated in subsection (1) must be regarded as a public school. (5) All assets, liabilities, rights and obligations of the schools that are merged, must, subject to the conditions of any donation, bequest or trust contemplated in section 37 (4), vest in the single school. (6) (a) The governing bodies of the schools that are merged must have a meeting before the merger to constitute a single interim governing body comprising of all the members of the governing bodies concerned. (b) The interim governing body must decide on the budget and differences in codes of conduct and school fees, as well as any issue that is relevant to the merger or which is prescribed, until a new governing body is constituted in terms of sections 23 and 28. (7) The governing body of a public school to be merged, may appeal to the Minister against the decision as contemplated in subsection (1). [S. 12A inserted by s. 8 of Act No. 48 of 1999.] 13. Public schools on State property.—(1) In this section, immovable property owned by the State includes immovable property held in trust on behalf of a tribe by a trust created by statute. (2) Subject to section 20 (1) (k), a public school which occupies immovable property owned by the State has the right, for the duration of the school’s existence, to occupy and use the immovable property for the benefit of the school for educational purposes at or in connection with the school. (3) The right referred to in subsection (2) may only be restricted— (a) by the Member of the Executive Council; and (b) if the immovable property is not utilised by the school in the interests of education. (4) The Member of the Executive Council may not act under subsection (3) unless he or she has— (a) informed the governing body of the school of his or her intention so to act and the reasons therefor; (b)  granted the governing body of the school a reasonable opportunity to make representations to him or her in relation to such action; (c) duly considered any such representations received. (5) The right contemplated in subsection (2) is enforceable against any successor in title to the owner of the immovable property in question. (6) No immovable property owned by the State and occupied by a public school may be alienated unless an agreement contemplated in section 14 has been concluded between the Member of the Executive Council and the prospective owner of the immovable property. (7) The Registrar of deeds may not execute, attest to or register a transfer deed in respect of the immovable property in question unless the owner has provided the Registrar of deeds with proof of the agreement contemplated in subsection (6). [Sub-s. (7) substituted by s. 4 (a) of Act No. 100 of 1997.] Wording of Sections (8) The provisions of the Deeds Registries Act, 1937 (Act No. 47 of 1937), do not apply to the right contemplated in subsection (2). (9) On application by the owner and on production of the owner’s copy of the title deed, the Registrar of deeds must endorse on the title deed and in his or her records the fact that a public school has been established on the land in terms of this Act. [Sub-s. (9) added by s. 4 (c) of Act No. 100 of 1997.] Wording of Sections s 13(7) of Act 84 of 1996 prior to amendment by Act 100 of 1997 14. Public schools on private property.—(1) Subject to the Constitution and an expropriation in terms of section 58 of land or a real right to use the property on which the public school is situated, a public school may be provided on private property only in terms of an agreement between the Member of the Executive Council and the owner of the private property. [Sub-s. (1) substituted by s. 2 of Act No. 53 of 2000.] Wording of Sections (2) An agreement contemplated in subsection (1) must be consistent with this Act and in particular must provide for— (a) the provision of education and the performance of the normal functions of a public school; (b) governance of the school, including the relationship between the governing body of the school and the owner; (c) access by all interested parties to the property on which the school stands; (d) security of occupation and use of the property by the school; (e) maintenance and improvement of the school buildings and the property on which the school stands and the supply of necessary services; (f)  protection of the owner’s rights in respect of the property occupied, affected or used by the school. (3) The provisions of the Deeds Registries Act, 1937 (Act No. 47 of 1937), do not apply to a real right, excluding ownership, acquired by the State, a public school or another party in terms of an agreement contemplated in this section. (4) The right contemplated in subsection (3) is enforceable against any successor in title to the owner of the immovable property in question. (5) Despite subsection (3), a Registrar of deeds must endorse on the title deed of the affected property that the property is subject to an agreement contemplated in this section, if the Registrar of deeds receives— (a) an application for such endorsement by the owner of the property, or the Member of the Executive Council or any other holder of a right contemplated in subsection (3), together with the title deed of the property; and (b) affidavits by the owner of the property and the Member of the Executive Council stating that an agreement contemplated in this section has been concluded. [Sub-s. (5) amended by s. 5 (a) of Act No. 100 of 1997 (English only).] Wording of Sections (6) The Minister must, after consultation with the Council of Education Ministers, make regulations regarding the minimum requirements of an agreement contemplated in this section. (7) The Registrar of deeds may cancel any endorsement made in accordance with subsection (5) if the owner of the property submits an affidavit from the Member of the Executive Council of the province in which the public school is situated to the effect that such public school has been closed in terms of section 33. [Sub-s. (7) inserted by s. 5 (b) of Act No. 100 of 1997.] (8) Any transfer duty, stamp duty, fees or costs payable in respect of the registration of a right in terms of subsection (3) may be paid in full or in part from funds appropriated by the provincial legislature for that purpose, but the public school contemplated in subsection (1) is not responsible for such duties, fees or costs. [Sub-s. (8), previously sub-s. (7), renumbered by s. 5 (b) of Act No. 100 of 1997.] Wording of Sections Wording of Sections s 14(1) of Act 84 of 1996 prior to amendment by Act 53 of 2000 Wording of Sections s 14(5) of Act 84 of 1996 prior to amendment by Act 100 of 1997 Wording of Sections s 14(8), (7) of Act 84 of 1996 prior to amendment by Act 100 of 1997 15. Status of public schools.—Every public school is a juristic person, with legal capacity to perform its functions in terms of this Act. 16. Governance and professional management of public schools.—(1) Subject to this Act, the governance of every public school is vested in its governing body and it may perform only such functions and obligations and exercise only such rights as prescribed by the Act.  [Sub-s. (1) substituted by s. 2 of Act No. 57 of 2001.] Wording of Sections (2) A governing body stands in a position of trust towards the school. (3) Subject to this Act and any applicable provincial law, the professional management of a public school must be undertaken by the principal under the authority of the Head of Department. (4) The Head of Department may close a public school temporarily in the case of an emergency if he or she believes on reasonable grounds that the lives of learners and staff are endangered or that there is a real danger of bodily injury to them or of damage to property. [Sub-s. (4) added by s. 9 of Act No. 48 of 1999.] (5) When the Head of Department decides that the school should be re-opened, he or she must inform the governing body and the principal of the date on which the school must reopen. [Sub-s. (5) added by s. 9 of Act No. 48 of 1999.] (6) The principal or a person designated by the Head of Department must inform the educators and parents of the date contemplated in subsection (5). [Sub-s. (6) added by s. 9 of Act No. 48 of 1999.] (7) If a new public school is provided in terms of section 12, the governance of that school vests in the Head of Department until a governing body has been constituted in terms of this Act. [Sub-s. (7) added by s. 3 of Act No. 53 of 2000.] Wording of Sections s 16(1) of Act 84 of 1996 prior to amendment by Act 57 of 2001 16A. Functions and responsibilities of principal of public school.—(1) (a) The principal of a public school represents the Head of Department in the governing body when acting in an official capacity as contemplated in sections 23 (1) (b) and 24 (1) ( j). (b) The principal must prepare and submit to the Head of Department an annual report in respect of— (i) the academic performance of that school in relation to minimum outcomes and standards and procedures for assessment determined by the Minister in terms of section 6A; and (ii) the effective use of available resources. (c) (i) The principal of a public school identified by the Head of Department in terms of section 58B must annually, at the beginning of the year, prepare a plan setting out how academic performance at the school will be improved. (ii) The academic performance improvement plan must be— (aa) presented to the Head of Department on a date determined by him or her; and (bb) tabled at a governing body meeting. (iii) The Head of Department may approve the academic performance improvement plan or return it to the principal with such recommendations as may be necessary in the circumstances.  (iv) If the Head of Department approves the academic performance improvement plan the principal must, by 30 June, report to the Head of Department and the governing body on progress made in implementing that plan. (v) The Head of Department may extend the date contemplated subparagraph (iv) on good cause shown. (2) The principal must— (a) in undertaking the professional management of a public school as contemplated in section 16 (3), carry out duties which include, but are not limited to— (i) the implementation of all the educational programmes and curriculum activities; (ii) the management of all educators and support staff; (iii) the management of the use of learning support material and other equipment; (iv) the performance of functions delegated to him or her by the Head of Department in terms of this Act; (v) the safekeeping of all school records; and (vi) the implementation of policy and legislation; (b) attend and participate in all meetings of the governing body; (c) provide the governing body with a report about the professional management relating to the public school; (d) assist the governing body in handling disciplinary matters pertaining to learners; (e) assist the Head of Department in handling disciplinary matters pertaining to educators and support staff employed by the Head of Department; (f) inform the governing body about policy and legislation; [Para. ( f ) amended by s. 9 of Act No. 15 of 2011.] Wording of Sections (g) provide accurate data to the Head of Department when requested to do so; and; [Para. (g) amended by s. 9 of Act No. 15 of 2011.] Wording of Sections (h) assist the governing body with the management of the school’s funds, which assistance must include— (i)  the provision of information relating to any conditions imposed or directions issued by the Minister, the Member of the Executive Council or the Head of Department in respect of all financial matters of the school contemplated in Chapter 4; and (ii) the giving of advice to the governing body on the financial implications of decisions relating to the financial matters of the school; [Para. (h) added by s. 9 of Act No. 15 of 2011.] (h) take all reasonable steps to prevent any financial maladministration or mismanagement by any staff member or by the governing body of the school; [Para. (i) added by s. 9 of Act No. 15 of 2011.] ( j) be a member of a finance committee or delegation of the governing body in order to manage any matter that has financial implications for the school; and [Para. ( j) added by s. 9 of Act No. 15 of 2011.] (k) report any maladministration or mismanagement of financial matters to the governing body of the school and to the Head of Department. [Para. (k) added by s. 9 of Act No. 15 of 2011.] Wording of Sections s 16A(2)(f) of Act 84 of 1996 prior to amendment by Act 15 of 2011 Wording of Sections s 16A(2)(g) of Act 84 of 1996 prior to amendment by Act 15 of 2011 17. Governing body serving two or more schools.—(1) The Member of the Executive Council may determine that the governance of two or more public schools must vest in a single governing body if it is in the best interests of education at the schools in question. (2) The Member of the Executive Council may not act under subsection (1) unless he or she has— (a) given notice in the Provincial Gazette of his or her intention so to act; (b) given interested parties an opportunity to make written submissions within a period of not less than 30 days; and (c) considered all such submissions. 18. Constitution of governing body.—(1) Subject to this Act and any applicable provincial law, the governing body of a public school must function in terms of a constitution which complies with minimum requirements determined by the Member of the Executive Council by notice in the Provincial Gazette. (2) A constitution contemplated in subsection (1) must provide for— (a)  a meeting of the governing body at least once every school term; (b) meetings of the governing body with parents, learners, educators and other staff at the school, respectively, at least once a year; (c) recording and keeping of minutes of governing body meetings; (d) making available such minutes for inspection by the Head of Department; and (e) rendering a report on its activities to parents, learners, educators and other staff of the school at least once a year. (3) The governing body must submit a copy of its constitution to the Head of Department within 90 days of its election. 18A. Code of conduct of governing body.—(1) The Member of the Executive Council must, by notice in the Provincial Gazette, determine a code of conduct for the members of the governing body of a public school after consultation with associations of governing bodies in that province, if applicable. (2) The code of conduct referred to in subsection (1) must be aimed at establishing a disciplined and purposeful school environment dedicated to the improvement and maintenance of a quality governance structure at a public school. (3) All members of a governing body must adhere to the code of conduct. (4) The code of conduct must contain provisions of due process, safeguarding the interests of the members of the governing body in disciplinary proceedings. (5) The Head of Department may suspend or terminate the membership of a governing body member for a breach of the code of conduct after due process. (6) A member of the governing body may appeal to the Member of the Executive Council against a decision of a Head of Department regarding the suspension or termination of his or her membership as a governing body member. [S. 18A inserted by s. 6 of Act No. 50 of 2002.] 19. Enhancement of capacity of governing bodies.—(1) Out of funds appropriated for this purpose by the provincial legislature, the Head of Department must establish a programme to— (a) provide introductory training for newly elected governing bodies to enable them to perform their functions; and (b) provide continuing training to governing bodies to promote the effective performance of their functions or to enable them to assume additional functions. (2) The Head of Department must ensure that principals and other officers of the education department render all necessary assistance to governing bodies in the performance of their functions in terms of this Act. (3) The norms and standards for school funding must include— (a)  criteria for authorising a governing body association to perform the functions contemplated in subsection (4); (b) criteria relating to any financial implications that would be incurred or costs that would have to be paid by the Head of Department in relation to the performance of the functions contemplated in subsection (4); (c) guidelines relating to the nature, content, extent and duration of the functions contemplated in subsection (4); and (d) criteria for granting a governing body an allocation for contribution towards membership of a recognised governing body association. [Sub s. (3) added by s. 10 of Act No. 15 of 2011.] (4) (a) The Head of Department may request a recognised governing body association or other appropriate training authority to train members of a governing body of a particular school or group of schools and to build the capacity contemplated in section 25 (4). (b) For the purposes of paragraph (a), the Head of Department— (i) must enter into an agreement with the governing body association; (ii) must specify the nature, content, extent, duration and financial implications of the training in the agreement contemplated in subparagraph (i); and (iii) may include a request for the training of members of a governing body of a school that is not a member of the governing body association requested to conduct the training in the agreement contemplated in subparagraph (ii). [Sub s. (4) added by s. 10 of Act No. 15 of 2011.] 20. Functions of all governing bodies.—(1) Subject to this Act, the governing body of a public school must— (a) promote the best interests of the school and strive to ensure its development through the provision of quality education for all learners at the school; (b) adopt a constitution; (c) develop the mission statement of the school; (d) adopt a code of conduct for learners at the school; (e) support the principal, educators and other staff of the school in the performance of their professional functions; (eA)  adhere to any actions taken by the Head of Department in terms of section 16 of the Employment of Educators Act, 1998 (Act No. 76 of 1998), to address the incapacity of a principal or educator to carry out his or her duties effectively; [Para. (eA) inserted by s. 9 (a) of Act No. 31 of 2007.] (f) determine times of the school day consistent with any applicable conditions of employment of staff at the school; (g) administer and control the school’s property, and buildings and grounds occupied by the school, including school hostels, but the exercise of this power must not in any manner interfere with or otherwise hamper the implementation of a decision made by the Member of the Executive Council or Head of Department in terms of any law or policy; [Para. (g) substituted by s. 9 (b) of Act No. 31 of 2007.] Wording of Sections (h) encourage parents, learners, educators and other staff at the school to render voluntary services to the school; (i) recommend to the Head of Department the appointment of educators at the school, subject to the Employment of Educators Act, 1998 (Act No. 76 of 1998), and the Labour Relations Act, 1995 (Act No. 66 of 1995); [Para. (i) substituted by s. 3 of Act No. 57 of 2001.] Wording of Sections ( j) recommend to the Head of Department the appointment of non-educator staff at the school, subject to the Public Service Act, 1994 (Proclamation No. 103 of 1994), and the Labour Relations Act, 1995 (Act No. 66 of 1995); (jA) make the recommendation contemplated in paragraph ( j) within the time frames contemplated in section 6 (3) (l) of the Employment of Educators Act, 1998 (Act No. 76 of 1998). [Para. (jA) inserted by s. 9 (c) of Act No. 31 of 2007.] (k) at the request of the Head of Department, allow the reasonable use under fair conditions determined by the Head of Department of the facilities of the school for educational programmes not conducted by the school; [Para. (k) substituted by s. 4 of Act No. 53 of 2000.] Wording of Sections (l) discharge all other functions imposed upon the governing body by or under this Act; and (m) discharge other functions consistent with this Act as determined by the Minister by notice in the Government Gazette, or by the Member of the Executive Council by notice in the Provincial Gazette. (2) The governing body may allow the reasonable use of the facilities of the school for community, social and school fund-raising purposes, subject to such reasonable and equitable conditions as the governing body may determine, which may include the charging of a fee or tariff which accrues to the school.  (3) The governing body may join a voluntary association representing governing bodies of public schools. (4) Subject to this Act, the Labour Relations Act, 1995 (Act No. 66 of 1995), and any other applicable law, a public school may establish posts for educators and employ educators additional to the establishment determined by the Member of the Executive Council in terms of section 3 (1) of the Educators’ Employment Act, 1994. [Sub-s. (4) added by s. 6 of Act No. 100 of 1997.] (5) Subject to this Act, the Labour Relations Act, 1995 (Act No. 66 of 1995), and any other applicable law, a public school may establish posts for non-educators and employ non-educator staff additional to the establishment determined in terms of the Public Service Act, 1994 (Proclamation No. 103 of 1994). [Sub-s. (5) added by s. 6 of Act No. 100 of 1997.] (6) An educator and a non-educator employed in a post established in terms of subsection (4) or (5) must comply with the requirements set for employment in public schools in terms of this Act, the Labour Relations Act, 1995 (Act No. 66 of 1995), and any other applicable law. [Sub-s. (6) added by s. 6 of Act No. 100 of 1997.] (7) A public school may only employ an educator in a post established in terms of subsection (4) if such educator is registered as an educator with the South African Council of Educators. [Sub-s. (7) added by s. 6 of Act No. 100 of 1997.] (8) The staff contemplated in subsections (4) and (5) must be employed in compliance with the basic values and principles referred to in section 195 of the Constitution, and the factors to be taken into account when making appointments include, but are not limited to— (a) the ability of the candidate; (b) the principle of equity; (c) the need to redress past injustices; and (d) the need for representivity. [Sub-s. (8) added by s. 6 of Act No. 100 of 1997.] (9) When presenting the annual budget contemplated in section 38, the governing body of a public school must provide sufficient details of any posts envisaged in terms of subsections (4) and (5), including the estimated costs relating to the employment of staff in such posts and the manner in which it is proposed that such costs will be met. [Sub-s. (9) added by s. 6 of Act No. 100 of 1997.] (10) Despite section 60, the State is not liable for any act or omission by the public school relating to its contractual responsibility as the employer in respect of staff employed in terms of subsections (4) and (5). [Sub-s. (10) added by s. 6 of Act No. 100 of 1997.] (11) After consultation as contemplated in section 5 of the National Education Policy Act, 1996 (Act No. 27 of 1996), the Minister may determine norms and standards by notice in the Gazette regarding the funds used for the employment of staff referred to in subsections (4) and (5), but such norms and standards may not be interpreted so as to make the State a joint employer of such staff. [Sub-s. (11) added by s. 6 of Act No. 100 of 1997.] Wording of Sections s 20(1)(g) of Act 84 of 1996 prior to amendment by Act 31 of 2007  Wording of Sections s 20(1)(i) of Act 84 of 1996 prior to amendment by Act 57 of 2001 Wording of Sections s 20(1)(k) of Act 84 of 1996 prior to amendment by Act 53 of 2000 21. Allocated functions of governing bodies.—(1) Subject to this Act, a governing body may apply to the Head of Department in writing to be allocated any of the following functions: (a) To maintain and improve the school’s property, and buildings and grounds occupied by the school, including school hostels, if applicable; (b) to determine the extra-mural curriculum of the school and the choice of subject options in terms of provincial curriculum policy; (c) to purchase textbooks, educational materials or equipment for the school; (d) to pay for services to the school; (dA) to provide an adult basic education and training class or centre subject to any applicable law; or [Para. (dA) inserted by s. 10 (b) of Act No. 48 of 1999.] (e) other functions consistent with this Act and any applicable provincial law. (2) The Head of Department may refuse an application contemplated in subsection (1) only if the governing body concerned does not have the capacity to perform such function effectively. (3) The Head of Department may approve such application unconditionally or subject to conditions. (4) The decision of the Head of Department on such application must be conveyed in writing to the governing body concerned, giving reasons. (5) Any person aggrieved by a decision of the Head of Department in terms of this section may appeal to the Member of the Executive Council. (6) The Member of the Executive Council may, by notice in the Provincial Gazette, determine that some governing bodies may exercise one or more functions without making an application contemplated in subsection (1), if— (a) he or she is satisfied that the governing bodies concerned have the capacity to perform such function effectively; and (b) there is a reasonable and equitable basis for doing so. 22. Withdrawal of functions from governing bodies.—(1) The Head of Department may, on reasonable grounds, withdraw a function of a governing body. (2) The Head of Department may not take action under subsection (1) unless he or she has—  (a) informed the governing body of his or her intention so to act and the reasons therefor; (b) granted the governing body a reasonable opportunity to make representations to him or her relating to such intention; and (c) given due consideration to any such representations received. (3) In cases of urgency, the Head of Department may act in terms of subsection (1) without prior communication to such governing body, if the Head of Department thereafter— (a) furnishes the governing body with reasons for his or her actions; (b) gives the governing body a reasonable opportunity to make representations relating to such actions; and (c) duly considers any such representations received. (4) The Head of Department may for sufficient reasons reverse or suspend his or her action in terms of subsection (3). (5) Any person aggrieved by a decision of the Head of Department in terms of this section may appeal against the decision to the Member of the Executive Council. 23. Membership of governing body of ordinary public school.—(1) Subject to this Act, the membership of the governing body of an ordinary public school comprises— (a) elected members; (b) the principal, in his or her official capacity; (c) co-opted members. (2) Elected members of the governing body shall comprise a member or members of each of the following categories: (a) Parents of learners at the school; (b) educators at the school; (c) members of staff at the school who are not educators; and (d) learners in the eighth grade or higher at the school. (3) A parent who is employed at the school may not represent parents on the governing body in terms of subsection (2) (a). (4) The representative council of learners referred to in section 11 (1) must elect the learner or learners referred to in subsection (2) (d).  (5) The governing body of an ordinary public school which provides education to learners with special needs must, where practically possible, co-opt a person or persons with expertise regarding the special education needs of such learners. (6) A governing body may co-opt a member or members of the community to assist it in discharging its functions. (7) The governing body of a public school contemplated in section 14 may co-opt the owner of the property occupied by the school or the nominated representative of such owner. (8) Subject to subsection (10), co-opted members do not have voting rights on the governing body. [Sub-s. (8) substituted by s. 11 (a) of Act No. 48 of 1999.] Wording of Sections (9) The number of parent members must comprise one more than the combined total of other members of a governing body who have voting rights. (10) If the number of parents at any stage is not more than the combined total of other members with voting rights, the governing body must temporarily co-opt parents with voting rights. [Sub-s. (10) added by s. 11 (b) of Act No. 48 of 1999.] (11) If a parent is co-opted with voting rights as contemplated in subsection (10), the co- option ceases when the vacancy has been filled through a by-election which must be held according to a procedure determined in terms of section 28 (d) within 90 days after the vacancy has occurred. [Sub-s. (11) added by s. 11 (b) of Act No. 48 of 1999.] (12) If a person elected as a member of a governing body as contemplated in subsection (2) ceases to fall within the category referred to in that subsection in respect of which he or she was elected as a member, he or she ceases to be a member of the governing body. [Sub-s. (12) added by s. 11 (b) of Act No. 48 of 1999.] Wording of Sections s 23(8) of Act 84 of 1996 prior to amendment by Act 48 of 1999 24. Membership of governing body of public school for learners with special education needs.—(1) The following categories of persons must be represented on a governing body of a public school for learners with special education needs, in each case by a member or members of the respective category: (a) Parents of learners at the school, if reasonably practicable; (b) educators at the school; (c) members of staff at the school who are not educators; (d) learners attending the eighth grade or higher, if reasonably practicable; (e) representatives of sponsoring bodies, if applicable; (f) representatives of organisations of parents of learners with special education needs, if applicable; (g)  representatives of organisations of disabled persons, if applicable; (h) disabled persons, if applicable; and (i) experts in appropriate fields of special needs education. ( j) the principal in his or her official capacity. [Para. ( j) added by s. 7 of Act No. 100 of 1997.] (2) Subject to this Act, the Member of the Executive Council must, by notice in the Provincial Gazette, determine the number of members in each category referred to in subsection (1) and the manner of election or appointment of such members at every public school for learners with special education needs within his or her province. (3) A notice contemplated in subsection (2) must give interested parties an opportunity to make written submissions within a period of not less than 30 days. (4) The Member of the Executive Council must consider all such submissions, and thereafter may alter the notice contemplated in subsection (2). 25. Failure by governing body to perform functions.—(1) If the Head of Department determines on reasonable grounds that a governing body has ceased to perform functions allocated to it in terms of this Act or has failed to perform one or more of such functions, he or she must appoint sufficient persons to perform all such functions or one or more of such functions, as the case may be, for a period not exceeding three months. [Sub-s. (1) substituted by s. 4 (a) of Act No. 57 of 2001.] Wording of Sections (2) The Head of Department may extend the period referred to in subsection (1), by further periods not exceeding three months each, but the total period may not exceed one year. (3) If a governing body has ceased to perform its functions, the Head of Department must ensure that a governing body is elected in terms of this Act within a year after the appointment of persons contemplated in subsection (1). [Sub-s. (3) substituted by s. 4 (b) of Act No. 57 of 2001.] Wording of Sections (4) If a governing body fails to perform any of its functions, the persons contemplated in subsection (1) must build the necessary capacity within the period of their appointment to ensure that the governing body performs its functions. [Sub-s. (4) added by s. 4 (c) of Act No. 57 of 2001.] Wording of Sections s 25(1) of Act 84 of 1996 prior to amendment by Act 57 of 2001 Wording of Sections s 25(3) of Act 84 of 1996 prior to amendment by Act 57 of 2001 26. Recusal by members of governing body.—A member of a governing body must withdraw from a meeting of the governing body for the duration of the discussion and decision-making on any issue in which the member has a personal interest.  27. Reimbursement of members of governing body.—(1) Necessary expenses incurred by a member of a governing body in the performance of his or her duties may be reimbursed by the governing body. (2) No member of a governing body may be remunerated in any way for the performance of his or her duties. 28. Election of members of governing body.—Subject to this Act and any applicable provincial law, the Member of the Executive Council must, by notice in the Provincial Gazette, determine— (a) the term of office of members and office-bearers of a governing body; (b) the designation of an officer to conduct the process for the nomination and election of members of the governing body; (c) the procedure for the disqualification or removal of a member of the governing body or the dissolution of a governing body, for sufficient reason in each case; (d) the procedure for the filling of a vacancy on the governing body; (e) guidelines for the achievement of the highest practicable level of representativity of members of the governing body; (f) a formula or formulae for the calculation of the number of members of the governing body to be elected in each of the categories referred to in section 23 (2), but such formula or formulae must provide reasonable representation for each category and must be capable of application to the different sizes and circumstances of public schools; and (g) any other matters necessary for the election, appointment or assumption of office of members of the governing body. 29. Office-bearers of governing bodies.—(1)